DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.384 of 2017

                                                 Date of institution:  31.05.2017                                                     Date of decision   :  13.12.2018

Rajinder Singh son of Par Singh, resident of House No.2745, Sector 66, SAS Nagar, Mohali.

…….Complainant

Versus

1.     Yellow Stone Landmark Infocity through its authorised representative/Sales Manager, Sector 66-A, Mohali, District Mohali.

2.     Yellow Stone Builder’s Private Limited through its authorised representative/Manager having its corporate office at SCO 66-A, Mohali.

Now substituted with name of Aeropolis Infrastructure Private Limited through Managing Director Tejinder Singh Bhatia, SCO 161-162, Sector 8-C, Chandigarh, vide order dated 13.12.2018.

……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:     Shri Suresh Kumar, counsel for the complainant.

                Shri B.S. Mittal, counsel for the OP.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant, during service in M/s. Philips India Limited, Mohali booked residential apartment measuring 400 sq. ft. in basic sale price of Rs.8,75,000/- in the Integrated IT Township known as Yellowstone Landmark Infocity developed by Sukhum Infrastructure Pvt. Ltd. at Yellowstone residences (Phillips Towers) in Sector 66-A, SAS Nagar, Mohali. Agreement dated 17.05.2012 was entered by employer of complainant Yellowstone Builders Pvt. Ltd.  Possession was to be handed over within 18 months with extended tenure of six months from the date of agreement.  Amount of Rs.1,75,000/- was deposited by complainant with OPs in 2012. Complainant approached OPs for calling upon them to handover possession of the residential apartment because the agreed period has lapsed, but it turned out as if no construction work started even uptill 30.10.2013, 11.11.2013 and 15.12.2013. OPs admitted about delay in start of construction of units by claiming that approvals are awaited. Through letter dated 15.12.2013 OPs intimated the Union as if process of finalizing the contracts for infrastructure works of roads, water supply and sewerage etc. going on and assurance was given to develop the site by March, 2014, but that even not done. Later on at the intervention of Employees Union of complainant’s employer, assurance was given for completion of works by December, 2015 failing which undertaking was given to refund the entire amount as per GMADA norms. Earlier some of the consumers filed complaint in this Forum in which compromise was arrived at on 31.08.2015 and 29.01.2016 as per which construction work was to be completed on or before November, 2016 and possession was to be handed over before November, 2016, failing which OPs will refund the amount with interest @ 18% per annum from the dates of deposits. Despite that, construction not started and Execution Applications by other consumers were filed. Three cheques of amounts of Rs.50,000/-; Rs.60,000/- and Rs.60,000/- dated 10.08.2015; 21.09.2015 and 30.10.2015 were issued by OPs in favour of complainant, but with rider that cheques will not be presented in the banks. Despite that, amount of Rs.1,75,000/- has not been refunded, despite approach by complainant to OPs and sending of registered legal notice and that is why this complaint filed by pleading deficiency in service on part of OPs for seeking refund of the deposited amount of Rs.1,75,000/- with interest @ 18% per annum. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.20,000/- more claimed.

2.             In reply filed by OPs, it is pleaded inter alia as if complaint is not maintainable because complainant failed to submit eligible certificate with OPs for showing his entitlement to allotment of EWS/LIG category of flat as per terms of the buyers agreement. Further it is claimed that in view of failure of complainant to comply with condition No.6 of buyers agreement, possession of apartment, in view of policy of the Punjab Govt., could not be handed over.  Condition No.6 of agreement provides for refund of deposited amount without any deduction and claim of interest. Initially the road left out by GMADA for connecting International Airport, Mohali was having width of 164 feet, but the same stood increased to 200 feet and that is why master plan of the colony in question was forced to be re-scheduled resulting in non delivery of possession. It is claimed that letter regarding approval was written and factum regarding receipt of payment or of the agreement with the Employees Union, of which complainant is a member, are not denied. Factum of issue of cheques even admitted, but other facts denied.  

3.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-8 and thereafter closed evidence.  Shri J.S. Sodhi, Manager of OPs tendered in evidence his affidavit Ex.OP-1/1 and thereafter closed evidence.

4.             After closure of evidence by parties, an application was filed by complainant for substituting Aeropolis Infrastructure Private Limited through Managing Director Tejinder Singh Bhatia, as party and counsel for OPs suffered statement regarding no objection in such impleadment  subject to the condition that substitution should be through Managing Director only. However, vide orders of today itself, it was made clear while allowing substitution of Aeropolis Infrastructure Private Limited that liability of remaining directors will be determined in course of execution proceedings as per need, by keeping in view provisions of Company Law. After such substitution, both counsel for parties suffered statements that no more evidence to be led even after substitution of new successor of Yellow Stones Builders Pvt. Ltd. and as such arguments of counsel for parties were heard. Written arguments not submitted.

5.             From the submitted affidavit Ex.CW-1/1 of complainant and buyers agreement Ex.C-1 (also relied upon by OPs), it is made out that M/s. Philips India Limited Employees Union through its President and Secretary entered into an agreement with M/s. Yellow Stone Builders Pvt. Ltd., in pursuance of which complainant deposited Rs.1,75,000/- with OPs for allotment of residential apartment of EWS category on agreeing to pay Rs.8,75,000/-, as total sale price. In the written statement or in the affidavit Ex.OP-1/1 of representative of OPs, receipt of amount of Rs.1,75,000/- is not denied and as such complainant able to establish as if he deposited Rs.1,75,000/- with OPs.

6.             OPs failed to carry on the construction work despite undertaking to handover possession within 18 months with extended period of six months, as per terms of the agreement and that is why intimation through letter Ex.C-2 was given by OPs to Employees Union of complainant for disclosing that development work of the site project will be started by March, 2014 and thereafter on completion of the infrastructure work, possession will be handed over. Through letter Ex.C-3 sent by OPs to Employees Union of complainant, of which he is a member, it was disclosed as if the infrastructure work of providing roads, water supply and sewerage etc. has been started and tentative time for completion of the project was given as December, 2015. Despite issue of this letter, possession not handed over and nor construction work completed and as such complainant sent legal notice Ex.C-6 through postal receipt Ex.C-7 to OPs for calling upon them to refund the received amount with interest and pay compensation amount alongwith litigation expenses. Before that OPs issued three cheques of amounts of Rs.60,000/-; Rs.50,000/- and Rs.65,000/- in the name of complainant for undertaking to pay that amount in case possession not handed over by stipulated time of December, 2015. As direction was issued to complainant not to present these cheques and that is why complainant had not presented these cheques with banker of OPs. So virtually despite assurance of refunding Rs.1,75,000/-, the amount has not been returned back to complainant. Even construction has not been completed and that is why possession of the residential apartment even not handed over to complainant. Being so, deficiency in service on part of OPs certainly is there. Act of Ops in accepting the amount and that of not obtaining the approvals of the project from Govt. of Punjab is an act of unfair trade practice also and as such certainly complainant entitled for refund of paid amount with interest @ 12% per annum from the dates of deposits till payment in view of law laid down by Hon’ble State Consumer Disputes Redressal Commission Punjab in CC No.716, 789, 835 etc. of 2017 titled as Mangal Singh Kondal & others Vs. Bajwa Developer & Another and First Appeal No.318 of 2018 titled as Harpreet Singh vs. M/s. Bajwa Developers Limited & another,  decided on 30.07.2018.

7.             Clause-6 of agreement Ex.C-1 provides that buyer for allotment of EWS/LIG Apartment must fulfill eligibility conditions stipulated by Govt. of Punjab. Obligation was cast on the buyer (who is complainant of this case) to establish that he fulfills all the norms of eligibility laid down by Govt. of Punjab for allotment of EWS/LIG Apartment. Even if such stipulation in Clause-6 of agreement Ex.C-1 may be there, despite that it was responsibility of OPs to accept hard earned money from the buyers on being satisfied that they are eligible for fulfillment of conditions qua allotment of EWS/LIG apartments laid down by the Govt. of Punjab. Those conditions/norms bound to be in the knowledge of OPs and not complainant and as such just on the strength of Clause-6 of agreement in question, due right of complainant for refund of amount with interest cannot be denied. In case right of complainant to receive refund with interest denied, then it will amount to allowing OPs to have unjust enrichment at the cost of poor buyer and as such enforcement of Clause-6 for denying compensation amount and interest amount is unjust and improper because this Clause-6 casts unnecessary burden on the buyer, despite the fact that knowledge of norms of EWS/LIG flat allotment is of OPs and not of complainant.

8.             Even if in earlier complaint filed by Krishan Kumar against OPs, some compromise was arrived at, despite that benefit of same cannot be availed by complainant because of allowing interest @ 18% per annum through order Ex.C-4 was on the basis of compromise arrived at between complainant of that case with OPs of the present case. Present is not a case in which order going to be passed on basis of compromise, but interest is allowed by keeping in view provisions of Section 6 and 12 of PAPRA Act read with Rule 17 thereof, which provides for allowing of interest @ 12% per annum from the dates of deposits till payment.

9.             Counsel for OPs placed reliance on decision dated 03.05.2016 rendered in Consumer Complaint No.412 of 2015 titled as Brahm Parkash Gaur & another Vs. M/s. Yellow Stone Builders Pvt. Ltd. by Ld. District Consumer Forum-I, UT Chandigarh for arguing that entitlement of complainant for interest will be @ 9% per annum. Decision of Ld. DCF-I, UT Chandigarh is not binding on this Forum, but decisions given by Hon’ble State Commission Punjab as referred above, are binding and the interest is allowed by keeping in view mandatory provisions of PAPRA Act and as such request for allowing of interest @ 9% per annum or from the date of filing of complaint or of issue of legal notice is turned down. For the similar reasons, benefit from ratio of case of Rakesh Kumar Vs. Iqbal Singh bearing FA No.127 of 2013 decided on 28.02.2013  by Hon’ble State Consumer Disputes Redressal Commission Punjab cannot be gained by counsel for OPs because provisions of PAPRA Act not taken into consideration therein and the decisions of the Hon’ble State Commission, referred above, is latest law on the subject, which has to be followed in precedence to the earlier decision of the same Hon’ble Commission.

10.            As a sequel of above discussion, complaint allowed in terms that Aeropolis Infrastructure Private Limited  will refund the received amount of Rs.1,75,000/- with interest @ 12% per annum from the dates of deposits  till payment. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/-  more allowed in favour of complainant and against Aeropolis Infrastructure Private Limited. Liability of Directors, if any, will be determined in the event of filing of execution application in the execution proceedings itself by keeping in view provisions of Company Law. However, liability of Managing Direction of course will remain in any eventuality. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order.  Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

December 13, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member